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2019 (7) TMI 2006 - AT - Companies LawMaintainability of appeal under Section 53B of the Competition Act, 2002 - Anti-Competition - abuse of dominant position - Proposal for combination - Jurisdiction to order such proposal - Appellant failed to establish locus standi as a person aggrieved by the 'Commission' to prefer the appeal under Section 53B - HELD THAT:- For forming prima facie opinion as to whether the combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, the Commission is required only to go through the information given under sub-section (2) of Section 6 therein including the details of combination. For forming such opinion, the Commission is not required to follow the procedure as laid down under Section 29 or Section 30 of the Act. The violation of Section 4 (i.e. Abuse of dominant position) is completely different than the violation of Section 6(1) (i.e. combination is likely to cause or has caused an appreciable adverse effect on competition), therefore, while passing order under sub-section (2) of Section 6, the Commission cannot hold abuse of dominant position, though it may hold that the combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India and thereby void in terms of Section 6(1) - In the present case, the Appellant alleges violation of Section 4 and not challenged the order dated 17th September, 2015 passed by the Commission under Section 31 of the Act. Further, as the question of abuse of dominant position will arise only after combination comes into effect in terms of sub-section (2) of Section 6 read with Section 31, the allegation of abuse of dominant position cannot be looked at the stage of approval of combination under Section 31. The intimation given by the 'Commission' by letter dated 3rd November, 2015 to the Appellant is also not under challenge. The Appellant has also suppressed the aforesaid fact. It is the second time when such intimation given by letter dated 16th June, 2016, the present appeal has been preferred - The intimation given to the Appellant do not fall under any provisions as stipulated under clause (a) of Section 53A, therefore, the appeal under Section 53B preferred by the Appellant is not maintainable. This Appellate Tribunal can hear and dispose of appeals against any direction issued or decision made or order passed by the 'Commission' under sub-sections (2) and (6) of Section 26, Sections 27, 28, 31, 32, 33, 38, 39, 43, 43A, 44, 45 or Section 46 of the Act - thus, no case has been made out by the Appellant to hold that the combination has appreciable adverse effect on competition in relevant market. In absence of any merit, the appeal is dismissed.
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